A (Very Limited) Answer on Affirmative Action

The U.S. Supreme Court today issued a ruling on Fisher v. University of Texas at Austin, in which a white woman is suing Texas’s flagship university, arguing that the school’s affirmative action program—and therefor her rejection for admission—constitutes a violation of the Equal Protection Clause of the Fourteenth Amendment.

Or, well, it issued a kind of ruling. The justices have, essentially, punted it. According to this article in the New York Times:

The Supreme Court on Monday ordered lower courts to take a fresh look, under a more demanding standard, at the race-conscious admissions policy used to admit students to the University of Texas. The 7-to-1 decision was simultaneously modest and significant, and its recalibration of how courts review the constitutionality of affirmative action programs is likely to give rise to a wave of challenges to admissions programs at colleges and universities nationwide.

For now, the Texas program and other affirmative action programs can continue without changes.

According to the decision, written by Justice Anthony M. Kennedy (Justice Ruth Bader Ginsburg dissented, Justice Elena Kagan, who worked on the same case in her role as U.S. solicitor general, recused herself), the case returns to the lower courts because UT Austin must show that “the means chosen by the university to attain diversity are narrowly tailored to that goal.”

The ruling doesn’t have much to do with affirmative action as a general policy. It’s really more about how the Fifth Circuit Court of Appeals ruled on the case. In fact, it appears the Supreme Court is basically of the opinion that affirmative action is permissible, provided it, well, works. Or, as David Corn at Mother Jonesput it “only in instances when the public benefit is narrowly defined and justified—and there is strict scrutiny of such factors.”

Justice Clarence Thomas, who agreed with the majority, wrote in a concurring opinion (which was actually longer than Kennedy’s ruling) that he would have liked the Supreme Court to determine that “a State’s use of race in higher education admissions is categorically prohibited by the Equal Protection Clause.” As he explained, “if the Court were actually applying strict scrutiny, it would require Texas either to close the University or to stop discriminating against applicants based on their race.” But because strict scrutiny didn’t apply here, it’s inappropriate to render a decision about affirmative action in general.

Justice Ruth Bader Ginsburg dissented with the majority opinion. According to the Times, Ginsburg “said the race-neutral part of the Texas program worked only because of ‘de facto racial segregation in Texas’s neighborhoods and schools.’ She said she would have upheld the appeals court decision endorsing the entire admissions program.”